The IRA was a proscribed organization under the terms of the Offences Against the State Acts passed between 1939 and 1998 in the Republic of Ireland and under equivalent anti-terrorist legislation in the United Kingdom, making membership of it a criminal offence. In the Republic, trials for membership take place in the Special Criminal Court (where three judges hear cases without a jury, on the evidence of a Garda superintendent or higher rank) and carries a maximum penalty of five years' imprisonment.

Senior members of Sinn Féin, some of whom, according to both the British and Irish governments, have sat on the Army Council, together with IRA members not known to be involved in illegal activities, have been effectively immune from prosecution in recent years in order to enable progress in the peace process.[citation needed]

On 14 January 2005, Martin Ferris, a Sinn Féin TD for North Kerry, was accused of being a member of the IRA Army Council in an article in The Irish Times written by journalist Kevin Myers. In the same article, Myers also accused members of Sinn Féin who had visited Downing Street in December 2004, a delegation that had included Gerry Adams, of sitting on the Army Council.[citation needed]

On 20 February 2005, Irish Justice Minister Michael McDowell publicly named Ferris, Gerry Adams, and Martin McGuinness, Sinn Féin's chief negotiator, as members of the Army Council during a radio interview.[4] The three men issued a statement the next day denying the charge.[5]

On 27 July 2005, McDowell expressed his belief that Adams, McGuinness, and Ferris had recently (within the previous few days) left the IRA Army Council. However he also claimed that it was his opinion that this by itself did not necessarily amount to a permanent split between the two organisations.